Unauthorized Practice of Law

Unauthorized Practice of Law

The definition of the “practice of law” varies by jurisdiction. In 2002, a task force of the American Bar Association (ABA) proposed a model definition: “The “practice of law” is the application of legal principles and judgment with regard to the circumstances or objectives of a person that require the knowledge and skill of a person trained in the law.“

The task force model language proposed: “A person is presumed to be practicing law when engaging in any of the following conduct on behalf of another:
(1) Giving advice or counsel to persons as to their legal rights or responsibilities or to those of others;
(2) Selecting, drafting, or completing legal documents or agreements that affect the legal rights of a person;
(3) Representing a person before an adjudicative body, including, but not limited to, preparing or filing documents or conducting discovery; or
(4) Negotiating legal rights or responsibilities on behalf of a person.”

See your current state laws, rules and court cases for the definition of the practice of law for your state.

Exceptions and Exclusions

The 2002 ABA task force model language also proposed: “Exceptions and exclusions: Whether or not they constitute the practice of law, the following are permitted:
(1) Practicing law authorized by a limited license to practice;
(2) Pro se representation;
(3) Serving as a mediator, arbitrator, conciliator or facilitator; and
(4) Providing services under the supervision of a lawyer in compliance with the Rules of Professional Conduct.

Task force comments stated that the primary consideration is the protection of the public. For conduct to be considered the practice of law, the conduct must be targeted toward the circumstances or objectives of another specific person (client). Pro Seself-representation is permitted. Courts have held that the publication of legal self-helpbooks is not the practice of law.

DOJ/FTC Letter Opposing ABA Definition of Practice of Law

Interestingly, the US Department of Justice (DOJ) and the Federal Trade Commission (FTC) reviewed the proposed model language from the ABA and opposed it, as written, for being too restrictive and anti-competitive against lay persons and harmful to consumers by causing an increase in prices for certain services where a lawyer is not needed.

They stated in a joint 2002 letter that there are many instances where non-lawyers provide assistance in providing legal information and assistance in completing legal forms for consumers at a low price or as an incidental service in situations where a lawyer is not needed. Some services, such as mobile real estate closers, (notary signing agents), offer convenient services during evenings or weekends or at a client’s home, services not offered by a typical law firm.

It is in the public interest for competition to exist, to offer more choices and lower prices to the consumer, so the consumer can choose when the services of a lawyer are needed. The ABA proposal did not show that the public was being harmed by activities done by lay persons who have some legal knowledge including real estate agents, real estate closing agents, bankers, financial advisors, accountants, tax preparers, business consultants, hospitals, legal compliance officers, tenants’ associations, self-help legal forms and software, and others.

The Internet has made access to legal information more readily accessible and created online businesses and online services, providing more choices for consumers for legal research, education, and services.

The DOJ/FTC letter recommends that the Model Definition of the practice of law, should allow layperson competition that is in the public interest, and craft an appropriate definition of the practice of law that is based upon a careful review of the harms and benefits of layperson participation in any service that the Definition would cover.

Notary Signing Agent Pledge of Ethical Practice

For notaries who do real estate document signings, the National Notary Association (NNA) has published a Notary Signing Agent (NSA) Pledge Of Ethical Practice:

I am not an attorney and therefore, by law, I cannot explain or interpret the contents of any document for you, instruct you on how to complete a document or direct you on the advisability of signing a particular document. By doing so I would be engaging in the unauthorized practice of law (UPL) and could face legal penalties that include the possibility of incarceration. Any important questions about your document should be addressed to the lender, title company or an attorney.

Model Notary Act

Section 5-12 Unauthorized Practice of Law
(a) A non-attorney notary shall not assist another person in drafting, completing, selecting, or understanding a document or transaction requiring a notarial act.
(b) If notarial certificate wording is not provided or indicated for a document, a non-attorney notary shall not determine the type of notarial act or certificate to be used.

Section 5-13 Permissible Advice
Section 5-12 does not preclude a notary who is duly qualified, trained, licensed, or experienced in a particular industry or professional field from selecting, drafting, completing, or advising on a document or certificate related to a matter within that industry or field.

Colorado Practice of Law

The Colorado Supreme Court has defined the “practice of law” as “act[ing] in a representative capacity in protecting, enforcing, or defending the legal rights and duties of another and in counseling, advising and assisting [another] in connection with these rights and duties.”

The Court’s words make clear that providing legal advice to another person constitutes the practice of law, as does the selection and drafting of legal documents for use by another person. A nonlawyer’s exercise of legal discretion on behalf of another’s legal interest is prohibited because of potential harm to the public.

Thus, a non-lawyer generally cannot:
1) Provide legal advice to another person;
2) Select legal documents on behalf of another person;
3) Draft legal documents on behalf of another person;
4) Interpret the law as it may apply to another person’s situation;
5) Represent another person in any legal transaction or matter;
6) Prepare another person’s case for trial.